CHECK v. GACEVK (2005)

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated April 23, 2004, as denied his cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the submission of the plaintiff's deposition testimony, the records of the plaintiff's treating physicians, and the affirmed medical reports of the defendant's examining physicians (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Fragale v. Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901;  Hodges v. Jones, 238 A.D.2d 962, 661 N.Y.S.2d 159).   The submissions of the plaintiff in opposition to the cross motion were insufficient to raise a triable issue of fact.   The conclusions of the plaintiff's expert physician, who examined the plaintiff for the first time approximately 15 months after the accident, were contradicted by the findings and reports of the plaintiff's own treating physicians and failed to take into account the injuries sustained by the plaintiff in two previous motor vehicle accidents.

Accordingly, the cross motion for summary judgment dismissing the complaint should have been granted.